Antonetti v. Obama et al

Filing 129

ORDER granting Defendants' Motion to Dismiss Antonetti's Deprivation of Property Claims in Counts 9, 14, and 24 (Docket #198 in Case 3:10-cv-158). Signed by Judge Larry R. Hicks on 3/12/15. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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JOSEPH ANTONETTI,

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Plaintiff,

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v.

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HOWARD SKOLNIK, et al.,

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Defendant.

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3:10-cv-0158-LRH!WGC
3:11-cv-0548-LRH-WGC
ORDER

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Before the Court is Defendants’ Motion to Dismiss Plaintiff Joseph Antonetti’s

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(“Antonetti”) counts 9, 14, and 24, regarding deprivation of personal property without due process

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of law. Doc. #198.1 Antonetti filed an Opposition (Doc. #210), to which Defendants replied (Doc.

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#217). Thereafter, Antonetti filed a Supplement in Support of Opposition of Defendants’ Motion

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to Dismiss. Doc. #224. During a hearing on March 10, 2015, regarding pending pre-trial motions,

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the Court heard argument on this Motion to Dismiss. The Court has considered this argument, the

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submissions of the parties, and the relevant case law.

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This case represents the consolidation of two cases filed by Antonetti, an inmate with the

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Nevada Department of Corrections (“NDOC”), alleging several constitutional violations regarding

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his treatment and conditions of his confinement. Although many of Antonetti’s claims remain, at

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issue to the present Motion to Dismiss are counts 9, 14, and 24, regarding alleged Fourteenth

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Refers to the Court’s docket number.

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Amendment violations of due process for deprivation of personal property without notice or a post-

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deprivation remedy.

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Defendants have moved the Court to dismiss Antonetti’s property claims for lack of

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subject-matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). “If the court determines at any time that it

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lacks subject-matter jurisdiction, the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3).

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Objections to subject matter jurisdiction can be raised at any time, even after trial has ended.

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Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 131 S. Ct. 1197, 1202 (2011). “Indeed, a

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party may raise such an objection even if the party had previously acknowledged the trial court's

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jurisdiction.” Id. Under the Prison Litigation Reform Act (“PLRA”), the district court has

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discretion to “dismiss any action brought with respect to prison conditions under [42 U.S.C. §

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1983] . . . if the action is frivolous, malicious, fails to state a claim upon which relief can be

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granted, or seeks monetary relief from a defendant who is immune from such relief.” 42 U.S.C. §

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1997e(c)(1).

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Intentional but unauthorized deprivation of an inmate’s personal property by prison

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employees does not violate the Due Process Clause so long as “adequate state post-deprivation

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remedies are available.” Hudson v. Palmer, 468 U.S. 517, 533 (1984). Defendants argue that the

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Court must dismiss Antonetti’s deprivation of personal property claims because adequate state

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post-deprivation remedies were available to him, but he did not pursue such remedies. Doc. #198

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at 3. Specifically, Nevada law permits an inmate who has been wrongfully deprived of property to

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seek redress through a state civil action. NRS 41.0322; NRS 73.010; NRS 41.031. Additionally,

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individuals claiming less than $7500 in property damage can sue in small claims court. NRS

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4.370(o); NRS 73.010.

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First, Antonetti opposes Defendants’ Motion because the statute of limitations for small

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claims has passed, and “there is no PLRA requirement to seek ‘small claims,’ and same cannot

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remedy for violations of constitutional due process.” Doc. #210 at 2. Although the Court

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recognizes that the timing is unfortunate for Antonetti, it is immaterial that the statute of limitations
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for the state small claims remedy has passed. A number of courts have dismissed property

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deprivation claims because “[e]ven if plaintiff would now be barred by the statute of limitations

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from filing a state tort action, he had an adequate post deprivation remedy available to him at the

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time of the alleged wrongful action.” Smith v. Vail, No. 10-5614, 2011 WL 31764, at *1 (W.D.

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Wash. Jan. 4, 2011); see also Azor v. City of New York, No. 08-cv-4473, 2012 WL 1117256, at *5

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n.9 (E.D.N.Y. Mar. 30, 2012) (“[E]ven if [plaintiff’s] claims are barred by the statute of limitations,

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that fact does not deprive him of a meaningful post-deprivation remedy under Hudson.”); Curro v.

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Watson, 884 F. Supp. 708, 717 (E.D.N.Y. 1995) (citing Campo v. N.Y. City Emps. Ret. Sys., 843

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F.2d 96, 102 n.6 (2d Cir. 1988)) (finding that “it is inconsequential that the state postdeprivation

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remedy is no longer available because such claim has become barred by the statute of limitations”).

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Second, Antonetti argues that the Court already determined that it had subject matter

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jurisdiction to consider Antonetti’s deprivation of property claims to the extent that such claims

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were based on due process concerns. One of the Magistrate Judge’s prior Orders, which was

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adopted by this Court, cited Administrative Regulation (“AR”) 740, which states:

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If the inmate’s remedy to their grievance includes monetary restitution or
damages, then the inmate will get the following forms from unit staff, unit
caseworker, or law libraries: A. Form DOC-3026, Inmate Property Claim, which
shall be completed and submitted in addition to the grievance for all property loss
or damage claims. B. Form DOC-3026, Administrative Claim Form, which shall
be completed and submitted in addition to the grievance for all personal injury,
tort, or civil rights claims.

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See Doc. #161 at 24. The Magistrate Judge noted that “an inmate is only required to comply with

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those requirements which are held out to him by the institution.” Id. Importantly, this portion of

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the Order, and similar excerpts cited by Antonetti in opposition to the present Motion to Dismiss,

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addresses institution grievance procedures but does not discuss the existence or adequacy of state

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small claims remedies.2

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Furthermore, Antonetti notes that the Magistrate Judge referred to one grievance as a “process” claim
and another grievance as a monetary claim. See Doc. #161 at 26. However, the Magistrate Judge did not draw
this distinction to indicate that the claim could survive as a valid due process violation claim, but rather to show

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Ninth Circuit and District of Nevada case law does not support Antonetti’s interpretation

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that his property claims must survive because he alleged a due process violation, for which Nevada

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did not provide an adequate state remedy. In Williams v. Norton, the Ninth Circuit affirmed the

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district court’s dismissal of the plaintiff’s deprivation of property claim because he “did not allege a

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cognizable due process claim” in light of the fact that the state provided an adequate post-

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deprivation remedy. No. 97-16252, 1999 WL 386955, at *1 (9th Cir. 1999). Courts in the District

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of Nevada have consistently held that plaintiffs cannot allege due process claims in federal court

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when adequate state court remedies are available. See Rean v. City of Las Vegas, No. 2:10-cv-

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1094, 2010 WL 4942029, at *5 (D. Nev. Nov. 29, 2009) (“[D]eprivation of an inmate’s property by

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prison employees does not violate the Due Process Clause, provided that adequate state post-

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deprivation remedies are available.”); Schiro v. Clark, No. 3:10-cv-0203, 2010 WL 497572, at *4

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(D. Nev. Nov. 29, 2010) (“Plaintiff may seek redress in the state system, but he cannot sue in

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federal court on the claim that the state deprived him of property without due process of law.”);

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Kille v. Borowy, No. 3:08-cv-0469, 2008 WL 5273695, at *1 (D. Nev. Dec. 17, 2008) (finding that

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a plaintiff “cannot establish an actionable due process violation” because an adequate state court

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post-deprivation remedy was available).

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Antonetti’s due process claims could survive if he were alleging that the deprivation of his

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property was “carried out pursuant to an established state procedure or regulation.” Philippi v.

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Skolnik, No. 3:11-cv-0272, 2013 WL 5372352, at *9 (D. Nev. Sept. 24, 2013) (citing Hudson, 468

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U.S. at 532). In such cases, the court would determine that certain “authorized property

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deprivations are permissible if conducted pursuant to a regulation that is reasonably related to a

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legitimate penological interest.” Id. (citing Turner v. Safley, 482 U.S. 78, 89 (1987)). However, as

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in Philippi, Antonetti’s deprivation of property claims allege that Defendants acted without

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authority when they confiscated or destroyed his property. Antonetti alleges that “Defendants are

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that the two grievances presented distinct issues and were therefore not duplicative. Id. at 26-27.

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required to post rules in cells and fail.” Doc. #210 at 1. Antonetti alleges further that Defendants

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have made unauthorized deductions, and that “failure to follow correct procedure violates due

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process.” Id. at 4-5. Additionally, Antonetti alleges that “Defendants did not follow their own

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regulations and gave tacit authorization to deprivations.” Id. at 5.

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Such allegations indicate that Antonetti’s deprivation of property claims refer not to

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deprivations carried out pursuant to established regulations, but rather to unauthorized deprivations

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by the Defendants themselves. “Such deprivations do not give rise to liability under the Due

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Process Clause when there is an available state common-law tort remedy.” Philippi, 2013 WL

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5372352, at *9. Because Antonetti had an adequate state post-deprivation remedy, the Court finds

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that it lacks subject matter jurisdiction to consider Antonetti’s deprivation of property without due

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process claims. Accordingly, the Court dismisses claims 9, 14, and 24 from Antonetti v. Skolnik et

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al., No. 3:10-cv-0158.

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IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss Antonetti’s
Deprivation of Property Claims in Counts 9, 14, and 24 (Doc. #198) is GRANTED.

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IT IS SO ORDERED.

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DATED this 12th day of March, 2015.

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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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